The New Jersey Appellate Division, the state’s intermediate appeals court, issued an important decision on August 17 expanding the range of “bystanders” to whom negligent actors may have liability for causing emotional distress to include non-marital same-sex families. A unanimous three-judge panel, taking account of the momentous developments in public attitudes about LGBT families over the past 38 years, ruled in Moreland v. Parks, 2018 WL 3945312, 2018 N.J. Super. LEXIS 120, that the lesbian co-parent of a young child who died as a consequence of a tragic traffic incident should not have been dismissed from the case by a Mercer County trial judge.

It was as recently as 1980 that the New Jersey Supreme Court first recognized, in the case of Portee v. Jaffee, 84 N.J. 88, that a mother who witnessed the agonizing death of her young son, who had become trapped between an elevator’s outer doors and the wall of the elevator shaft, could sue for the emotional distress she suffered due to the negligence of the defendant building owners and the elevator company in causing her son’s death. Through a slow process of doctrinal evolution, the courts have gradually shed their earlier reluctance to award damages for emotional distress to people who had not themselves suffered a direct physical injury, but the courts were cautious about expanding the range of such potential liability.

Portee is New Jersey’s controlling state Supreme Court precedent in “bystander” cases, and the Portee court ruled that bystanders eligible to seek compensation for severe emotional distress in such cases should be limited to “a marital or intimate, familial relationship between the plaintiff and the injured person.” In a further development in New Jersey law, the Supreme Court ruled in Dunphy v. Gregor, 136 N.J. 99 (1994), that the fiancé of a man killed in a traffic incident, who had witnessed the vehicle strike his body and attempted to comfort him while awaiting an ambulance, could sue the driver of the vehicle for negligent infliction of emotional distress, even though couple were not yet legally married. The court emphasized that they were cohabiting and engaged to be married at the time, and considered this a sufficient “familial relationship.”

In the Moreland case decided on August 17, co-plaintiff Valerie Benning was standing on a street corner with her then-same-sex partner (now spouse), I’Asia Moreland and their children. Benning and Moreland had been living together for seventeen months, and were jointly raising Moreland’s two children (who were born before their relationship began) and Benning’s young godson. Benning was holding the hand of two-year-old L’Maya as they waited for the traffic signal to change so they could cross the street to attend the “Disney on Ice” show playing at the Sun Bank Arts Center in Trenton. Suddenly, a fire truck collided in the intersection with a pickup truck, and the pickup truck struck L’Maya, who was “propelled” sixty-five feet south of the intersection, and who later died from her injuries in the hospital.

Benning was also knocked down, and the next thing she remembered was lying on the ground and the confused panic that ensued around her, struggling to her feet and running towards L’Maya and hearing screaming from observers of the scene, then the ambulance trip to the hospital and the hysteria she suffered upon learning L’Maya was dead. The opinion quotes extensively from her deposition describing her experience, and the emotional and psychological trauma she suffered.

Moreland and Benning filed suit against multiple defendants, claiming a variety of damages. The Appellate Division’s ruling was about the trial judge’s decision to grant the defendants’ motion to dismiss Benning’s claim for compensation for the emotional distress she suffered as a “bystander” to the events causing L’Maya’s death.

At the time of this incident in 2009, Moreland and Benning were not legally related to each other, and Benning was not legally related to L’Maya. (Marriage equality did not come to New Jersey until several years later, at which time the women did marry, but as of 2009 they had not registered as N.J. civil union partners.)

The trial judge had to determine whether Benning’s relationship to L’Maya came within the scope of the New Jersey Supreme Court’s ruling in Portee, of an “intimate, familial relationship between plaintiff and the injured person.” The trial judge, who is not named in the court’s opinion, said that an “intimate” relationship would not “suffice” unless it could be considered “familial.” “There is a requirement that they have to be family,” wrote the judge. “Portee talks about familial relationship but it didn’t say family-ish or something similar to a family. It says familial and there are cases that must use the word family. It has to be family and there’s no question of fact that Ms. Benning was not. The evidence is that she was a girlfriend and she might have been part of the child’s household, but by any definition that I can find in the law about family, Ms. Benning doesn’t meet it. The undisputed facts are that she was neither a biological or adoptive parent.”

The judge also noted the lack of any expert psychological testimony. To the trial judge, it wasn’t enough that there was evidence that within weeks of Benning and Moreland living together, L’Maya had begun referring to Benning as “mom.” Said the judge, “just using the word mom all by itself doesn’t count for much, whether there’s a secure relationship, a bonded relationship, a reliant relationship, whether this is someone that the two-year-old would have looked to for a comfort, the facts just aren’t there to be able to know those things.”

The trial judge pointed out that the kind of evidence that would exist if there was a custody or visitation or adoption proceeding, such as a psychologist’s report, was unfortunately missing in this case.

The court also distinguished the Dunphy case, writing, “Ms. Moreland and Ms. Benning weren’t even engaged at the time. I understand the laws regarding same sex relationships had change over time but there was a statute that did allow for that in New Jersey and whether they could have availed themselves of any such laws in other jurisdictions hasn’t been addressed in any of the papers” submitted to the court. In ruling to dismiss the claim, the trial judge wrote, “Ms. Benning was a part of a very small child’s life for 17 months at most. There’s no evidence that there was any permanent bond or that the relationship that she shared with the decedent was one that was deep, lasting, and genuinely intimate.”

Benning’s lawyer argued that dismissing this claim was inappropriate, because the question of “familial relationship” required a full hearing of the facts about this relationship, and should not be disposed of as a “matter of law” without an opportunity for such a hearing. They asked the Appellate Division to review this dismissal of the claim, but at first it refused to do so. Then they appealed to the New Jersey Supreme Court, which directed the Appellate Division to accept the appeal, solely to address the question “whether Benning falls within the class of litigants entitled to bring a civil action against defendants under the tort of negligent infliction of emotional distress.”

Writing for the Appellate Division panel, Judge Jose L. Fuentes traced the development of this legal doctrine in New Jersey through Portee and Dunphy, writing, “Critical to our analysis here is not only the Dunphy Court’s unambiguous rejection of any attempt to restrict the claimants to married persons, but also the articulation of the public policy underpinning the tort itself: ‘The basis for that protection is the existence of an intimate familial relationship with the victim of the negligence. . . When that emotional security is devastated because one witnesses, in close and direct proximity, an accident resulting in the wrongful death or grievous bodily injury of a person with whom one shares an intimate familial relationship, the infliction of that severe emotional injury may be the basis of recovery against the wrongdoer.”

The Appellate Division concluded that Benning had “presented sufficient evidence from which a jury could find that she and two-year-old L’Maya had an intimate familial relationship at the time of the child’s tragic death.” The trial court’s job in ruling on this type of motion was to view the evidence presented up to that point in “the light most favorable to the non-moving party,” and to ask whether a jury could conclude from that evidence that Benning and L’Maya had a familial relationship. “A rational jury can find that Benning was a de facto mother to this child, and felt her loss as deeply as any parent facing that horrific event,” wrote Judge Fuentes. “Benning’s deposition testimony supports this finding.”

Fuentes’ opinion noted how social change has expanded the public’s understanding far beyond what it was when Portee was decided in 1980. “Thirty-eight years ago,” he wrote, “gay, lesbian, and transgender people were socially shunned and legally unprotected against invidious discrimination in employment, housing, and places of public accommodation under our State’s Law Against Discrimination. The notion of same-sex couples and their children constituting a ‘familial relationship’ worthy of legal recognition was considered by a significant number of our fellow citizens as socially and morally repugnant and legally absurd. The overwhelming majority of our fellow citizens now unequivocally reject this shameful, morally untenable bigotry; our laws, both legislatively and through judicial decisions, now recognize and protect the rights of LGBTQ people to equal dignity and treatment under law.”

The court emphasized that “what constitutes a ‘familial relationship’ is perforce a fact-sensitive analysis, driven by evolving social and moral forces,” so to rely on the understandings prevailing when Portee was decided was inappropriate, and the trial judge should have denied the defendants’ motion and given Benning an opportunity to provide more evidence about the nature of the relationship. The court suggested that Benning would have been “better served” had her counsel introduced evidence in opposition to the defendants’ motion “with certifications from individuals who knew and saw these two women interact with these children on a day-to-day basis,” as this could have “assisted the motion judge in his decision.”

Benning was represented on appeal by Robin Kay Lord, with Clifford D. Bidlingmaier III, of Kardos, Rickles, Hand & Bidlingmaier, assisting on the brief. The case attracted amicus participation in briefing and arguing the appeal from Garden State Equality, New Jersey’s state LGBT rights organization, represented by Jennifer L. Hamilton, and from the New Jersey State Bar Association, whose out gay former president Tom Prol also presented a brief and oral argument.

The New Jersey Appellate Division rejected a municipality’s contention that the standard for determining a hostile environment for employment discrimination purposes should be the same as the standard for determining a hostile environment claim in the context of public accommodations, particularly when the accommodation at issue is the county jail and the alleged harassers are police officers dealing with a transgender arrestee. Holmes v. Jersey City Police Department, 2017 WL 1507189 (April 27, 2017).

Plaintiff Shakeem Malik Holmes, who identifies as a transgender man, was arrested for shoplifting and transported to a police station, where he contends that he was subjected to hostile treatment because of his gender identity. He was placed into a “female-only jail cell” and was “categorized as female for security purposes within the jail facilities,” but that was not the basis for this hostile treatment claim asserted under New Jersey’s Law Against Discrimination (LAD). The LAD identifies gender identity as a prohibited ground for discrimination in places of public accommodation, and the court notes that the defendant was not contesting the assertion that the jail was a place of public accommodation subject to the statute.

Holmes’ claim rests on his allegation that “police officers made demeaning, insulting and threatening comments about his transgender status,” wrote Judge Susan L. Reisner for the Appellate Division. “Specifically, he alleges that several officers referred to plaintiff as ‘it,’ referred to plaintiff’s situation as ‘bullshit,’ and stated ‘so that’s a fucking girl?’ He also asserts that one of the officers threatened to put his fist down plaintiff’s throat ‘like a fucking man.’”

The trial judge, relying on Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999), concluded that rude and insensitive comments “did not rise to the level of severe or pervasive LAD violations” and granted summary judgement to the defendants.

The “severe or pervasive” standard is normally applied to determine whether verbal harassment can create a hostile workplace environment for purposes of an employment discrimination case. But this case concerns treatment in a jail, not workplace harassment.

“In this case,” wrote Reisner, “the inquiry is whether plaintiff’s allegations, if true, could support a hostile environment claim under the LAD. We find that they could, and that plaintiff is therefore entitled to present his claim to a jury. In reaching that conclusion, we consider that plaintiff, as an arrestee temporarily incarcerated in the police station, was in a uniquely vulnerable position; that the individuals making the hostile comments were police officers, who wield tremendous power over arrestees; and that the comments included a physical threat. Under all the circumstances, a jury could find that the conduct was sufficiently severe that a reasonable transgender person in plaintiff’s position would find the environment to be hostile, threatening and demeaning.”

The court pointed out that the Heitzman case on which the trial judge in Hudson County relied, which apparently required a higher evidentiary standard for hostile environment workplace claims based on religion than for those based on race, “was overruled, in pertinent part, by Cutler v. Dorn, 196 N.J. 419 (2008), where the Court ‘unequivocally rejected the higher proof standard.’”

And further, she pointed out, the Appellate Division has recognized that “the prohibition of discrimination in relation to public accommodation is functionally distinct from the ban on employment discrimination” and that “in the context of public accommodation discrimination, hostile comments that might not suffice to create a hostile environment in a work context may nonetheless violate the LAD.”

The court also distinguished a case involving a student being harassed by fellow students, observing that in Holmes’ case the harassment came from police officers, analogous to teachers, not from fellow inmates, who would be analogous in some sense to other students. “Here, the comments were not made by school children, or by plaintiff’s peers. They were made by police officers, in a position of authority over plaintiff, who was their prisoner. In those circumstances, the impact of threatening and harassing conduct may be magnified, even if it only occurs on one day. Moreover, while a certain amount of strong language may be expected in teh confines of a police department, defendant has not suggested that its personnel have any operational need to threaten, demean or humiliate prisoners on the basis of their gender affiliation or membership in any other protected class. In fact, such conduct may encourage other prisoners to attack the harassment victim, thus undermining the orderly operation of the police lock-up as well as the safety of the transgender prisoner.”

Thus, summary judgment in favor of the defendants should have been denied, and the case was remanded for trial on Holmes’ hostile environment claim.

The New Jersey Appellate Division, an intermediate appeals court, threw out a state court jury’s conviction of Dharun Ravi on fifteen different criminal counts, finding that trial evidence about how Ravi’s actions in September 2010 adversely affected his college dormitory roommate, Tyler Clementi, had tainted all the verdicts in the case because it may have caused the jury to convict Ravi based on the victim’s belief rather than the defendant’s intent. Five of the convictions were tossed out permanently, but the remaining ten were sent back to the Middlesex County Superior Court, allowing prosecutors to retry Ravi on those counts. State of New Jersey v. Ravi, 2016 Westlaw 4710195 (N.J. App. Div., Sept. 9, 2016).

Ravi and Clementi were assigned as dormitory roommates as incoming freshmen at Rutgers University. Over the summer of 2010, Ravi used internet resources to learn about Clementi, and concluded that Clementi might be gay, but did not raise the subject with Clementi when they arrived at school. Ravi’s suspicions were reinforced on Sunday, September 19, when Clementi asked Ravi if Clementi could “have the room” for the evening because he was expecting a guest.

When Ravi saw that the guest was an “older man,” he arranged the webcam on his desk to focus on Clementi’s bed, and left his computer on so the video chat function could be activated remotely. Ravi went across the hall to the room of a woman who had been his high school classmate, Molly Wei. Through her computer he was able to access his webcam and together they briefly viewed Clementi and his guest kissing. Ravi spread word to his friends through twitter that they could access his computer and view the scene as well. Later that night, Wei turned on the video chat function again with some guests in her room and briefly watched Clementi and his guest “making out.”

Two days later Clementi asked to have the room again. There was conflicting testimony about what happened that evening, but it seems that although Ravi had tweeted to people to tune in to his video chat during that time, and had tried to set things up again, those attempting to view what was happening in the room were unable to do so.

The guest, identified by the court only by his initials to preserve his confidentiality, testified that he and Clementi had sex on both occasions, that he had observed the webcam focused on the bed during the first of these meetings but had not said anything to Clementi about it, and the second time he noticed the webcam was pointed away from the bed. He testified that he first learned about Clementi’s suicide when he read about it in the newspapers.

Clementi had begun monitoring Ravi’s twitter feeds, learned about what was going on, and was apparently embarrassed and mortified, going to a Resident Assistant and asking about an immediate room change. He submitted an electronic request and administrators instituted an investigation.

When Ravi was informed about the investigation, he deleted some incriminating tweets from his twitter account, composed a new backdated tweet telling his followers not to attempt to video chat with him and telling them to ignore his last tweet, and sent Clementi an apologetic text message, disclaiming any ill intent. In this message, he stated that on the second night he had deliberately repositioned the webcam so that even though he had tweeted to his friends to tune in, they would not see anything. Ravi also told Clementi that he knew Clementi was gay “and I have no problem with it. In fact one of my closest friends is gay and he and I have a very open relationship,” Ravi continued. “I just suspected you were shy about it which is why I never broached the topic. I don’t want your freshman year to be ruined because of a petty misunderstanding, it’s adding to my guilt. You have the right to move if you wish but I don’t want you to feel pressured to without fully understanding the situation.”

Shortly after Ravi transmitted the text message, Clementi wrote on his Facebook page, “I’m going to jump off the GW Bridge. Sorry.” He committed suicide by jumping off the bridge later that night. There is no evidence whether Clementi ever saw Ravi’s text message.

As soon as Clementi’s death was discovered, Rutgers ramped up the investigation. Ravi tried to reach out to his friend from across the hall, who had been brought in by the police for questioning. His subsequent phone and text interactions with her became the subject of several of the criminal charges that were filed against him, relating to witness tampering and hindering apprehension of prosecution. He waived his Miranda rights and gave a statement to the investigators which cleaned up his actions by omitting “homophobic statements he candidly included” in the tweets and texts he had sent to his followers and friends about Clementi’s use of the dorm room. “Without reciting at length the forty-four page interrogation document,” wrote the court, “we can safely summarize its content as a poorly executed attempt by defendant to sanitize his motives for using his knowledge of computers to surreptitiously observe T.C. and M.B. engaged in sexual relations.”

The main charges, however, were brought under New Jersey’s Bias Intimidation statute and invasion of privacy statute. At the time, the Bias Intimidation statute provided that a person was guilty of the crime of “bias intimidation” if “he commits, attempt to commit, conspires with another to commit, or threatens the immediate commission” of a variety of offenses listed in the statute either (1) purposely or (2) knowingly harassing the victim because of a characteristic (such as sexual orientation) listed in the statute, or if the victim (3) either “reasonably believed that the harassment was committed with a purpose to intimidate him” or that “he was selected to be the target” because of the characteristic.

At trial, the prosecution focused on the third of these categories, which is where they had the weightiest evidence. A major focus of the case was to persuade the jury that Clementi was a shy, sensitive person, who had clearly communicated to the Resident Assistant how upset he was by this “spying” on his private activities, which he amplified in the written complaint the RA encouraged him to write and submit with his room change application. The evidence was overwhelming that this third branch of the bias intimidation crime had been proved beyond a reasonable doubt.

On the other hand, the evidence that Ravi intended to harm or upset Clementi was less overwhelming, if one judges by the evidence summarized by Judge Jose Fuentes in the appellate decision. From the excerpts in the opinion, it appears that Ravi was an immature, insensitive person who lacked empathy for his roommate and was curious to know what was going on in his dorm room when he “gave the room” to Clementi for the night. In retrospect, it’s hard to understand how Ravi could believe that Clementi would not learn about his spying, since he was tweeting about it, or that Clementi, or anybody for that matter, would not be upset about their private activities being publicized and “netcast” in that way.

Thus, it is possible that the prosecution could have secured convictions on the bias intimidation counts without introducing evidence about the impact on Clementi and just focusing on what Ravi had said, tweeted and done. But in light of the opportunity provided by the third part of the statute and the evidence available to them, they presented all of it to the jury and won convictions on all counts.

During jury selection the judge “informed all prospective jurors during voir dire that [Clementi] committed suicide and that [Ravi] was not charged with either causing or contributing to his death.” His death was also mentioned several times during the trial, but was not mentioned during the judge’s charge to the jury or the prosecution’s closing argument. It was made clear to the jury that Ravi was being tried solely for his own actions.

After being convicted on all counts, Ravi received what many commentators, and the prosecutors, believed to be an extraordinarily light sentence: three years of probation, conditioned on serving thirty days at the Middlesex County Adult Correctional Center, completing 300 hours of community service, attend counseling, and pay an “assessment” of $10,000, which would be given to a state-license or state-chartered community-based organization dedicated to providing assistance to victims of bias crimes. Ravi appealed his conviction, but was required to fulfill this sentence while the case was pending on appeal. The prosecutors appealed the sentence, arguing that in light of the crimes, Ravi should have received substantially more time incarcerated.

Ravi was convicted in 2012. In 2015, in the case of State v. Pomianek, 110 A.3d 841, the New Jersey Supreme Court declared that the third part of the Bias Intimidation Statute was unconstitutional because it allowed a defendant to be convicted without any proof that he intentionally or knowingly engaged in conduct that violated the statute. As written, the statute allowed a conviction based solely on the belief of the victim that he was the target of such harassment. The court found that this violated basic constitutional rights. “In focusing on the victim’s perception and not the defendant’s intent, the statute does not give a defendant sufficient guidance or notice on how to conform to the law, write Justice Barry T. Albin for the Supreme Court. “That is so because a defendant may be convicted of a bias crime even though a jury concluded that the defendant had no intent to commit such a crime.”

The offending section had been added to the state’s bias intimidation law as part of a revision in response to a U.S. Supreme Court decision that struck down the prior law because it allowed the trial judge to impose a sentence greater than the one authorized by the jury verdict based on the judge’s view of the evidence. The Supreme Court determined that this violated the defendant’s right to trial by jury under the Sixth Amendment.

While striking down the objectionable part, the N.J. Supreme Court emphasized that the other two parts “still stand.” Wrote Justice Albin: “A defendant is prohibited from acting with the purpose to commit bias intimidation or with knowledge that his conduct constitutes bias intimidation. With the striking of subsection (a)(3), New Jersey’s bias intimidation law now conforms to its original form, the statute’s explanatory statement contained in the legislative history, the laws of the rest of the nation, and the United States Constitution.”

Given the way the case was litigated, it is not surprising that the Appellate Division found that the verdict on all four bias intimidation counts had to be thrown out. What was surprising, however, was that the convictions on all the other counts fell as well. However, the Judge Fuentes explained that “the evidence the State presented to prove the bias intimidation charges [under the stricken provision] permeated the entire case against defendant, rendering any attempt to salvage the convictions under the remaining charges futile. The State used evidence revealing the victim’s reserved demeanor and expressions of shame and humiliation as a counterweight to defendant’s cavalier indifference and unabashed insensitivity to his roommate’s right to privacy and dignity. The prosecutor aggressively pressed this point to the jury in her eloquent closing argument.”

“It is unreasonable to expect a rational juror to remain unaffected by this evidence,” Fuentes asserted. Although other evidence certainly supported the invasion of privacy counts, the charges of tampering with evidence (Ravi’s deletion of potentially intimidating tweets) and his attempt to affect what witnesses might say, the Appellate Division panel of three judges was convinced that the evidence about the effect on Clementi and his subsequent suicide, which should not have been presented to the jury, “constituted an error ‘of such a nature to have been clearly capable of producing an unjust result.’”

On the other hand, the court concluded that the state’s evidence on one of the hindering prosecution charges was so deficient that the charge should be permanently dropped from the case.

Judge Fuentes concluded the opinion with editorial comments condemning Ravi’s conduct and lamenting the misuse to which the internet can be put. “The sense of loss associated with a young man taking his own life defies our meager powers of reason and tests our resolve to seek consolation,” he wrote. “From a societal perspective, this case has exposed some of the latent dangers concealed by the seemingly magical powers of the Internet. The implications associated with the misuse of our technological advancements lies beyond this court’s competency to address.”

Ravi was not charged with liability in Clementi’s death, but the court was not willing to conclude without alluding to that responsibility. “The social environment that transformed a private act of sexual intimacy into a grotesque voyeuristic spectacle must be unequivocally condemned in the strongest possible way,” wrote Fuentes. “The fact that this occurred in a university dormitory, housing first-year college students, only exacerbates our collective sense of disbelief and disorientation. All of the young men and women who had any association with this tragedy must pause to reflect and assess whether this experience has cast an indelible moral shadow on their character.” Clearly, the court believed it had done so.

The bottom line is that the verdicts on the bias intimidation counts were reversed with prejudice, so Ravi cannot be retried on those counts, and one hindering prosecution count was permanently thrown out of the case. That leaves ten counts of actual or attempted invasion of privacy, hindering apprehension, witness tampering and evidence tampering. It is now up to the Middlesex County prosecutors whether to attempt to retry Ravi on these counts. They were expected to announce a decision whether to go forward within a week after the Appellate Division’s opinion as released.

Ravi reported to the Middlesex County Correction Center for his 30-day sentence, and earned early release after 20 days for good behavior. Although press accounts were not specific about this, presumably he has fulfilled that other terms of the sentence imposed by Superior Court Judge Glenn Berman. According to a report in the New York Daily News earlier this year about the argument before the court, Ravi’s attorney confirmed that he had not returned to Rutgers but was employed and had adjusted to his circumstances. Tyler Clementi’s family responded to the incident by starting a foundation to support efforts to combat bullying and harassment of gay kids.

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About the Author

Arthur S. Leonard, a professor at New York Law School since 1982, edits the monthly newsletter Lesbian/Gay Law Notes, and is co-author of Sexuality Law (Carolina Academic Press) and AIDS Law in a Nutshell (West Publishing Co.). He writes on legal issues for Gay City News (New York), and serves as a trustee of the Jewish Board of Family & Children's Services of New York.